New York Criminal Lawyer Blawg

DWI arrest & BAC level

In a DWI arrest the police will need to use a method to test the Blood Alcohol Content (BAC) of a driver’s blood to determine if the driver is intoxicated or impaired after consuming alcohol. The most common method is to have the motorist blow into a machine to test the alcohol level in the motorist blood. The machine looks like a large computer and has a keypad in the front. After blowing into a tube for a few seconds the machine will test the motorist’s breath and submit a result to the police. The machine’s calibration in any DWI test must be investigated and attacked.

Proof of Breathalyzer Calibration

In New York State the proof necessary by the prosecution in a DWI case is that the Breathalyzer was in proper working order at the time the test was administered to the motorist. The prosecution has this burden at trial and must prove this element beyond a reasonable doubt. The prosecution typically introduce into evidence a document entitled “record of calibration/maintenance.” This is also called the certificate of calibration of the Breathalyzer.

What is a Calibration?

In the field of DWI defense “calibration” refers to the inspection, calibration and repair of the breath test devices by specially trained technicians at facilities such as the New York State Police Crime Laboratory or the New York State Division of Criminal Justice Services Office of Public Safety. This calibration is NOT the weekly test conducted by the police officers at the police station. This is a much more complex test for calibration.

Suppression of a Breath Test due to Calibration

In People v Todd, 79 Misc.2d 630, a breathalyzer had not been calibrated for six months and the People failed to establish that the breathalyzer apparatus had been timely calibrated hence the results of the test were inadmissible. It is incumbent upon the District Attorney to show that the machine was in proper working order.

Todd Six Month Calibration Rule

Although lower courts have expanded the six month rule with respect to the calibration of a Breathalyzer the Court of Appeals has never reversed or altered its six month rule. This is something that the best criminal defense DWI lawyers must investigate when defending a DWI arrest.

New Breathalyzer Machines

The New York State Police have chosen to calibrate their newest breath test device, the Draeger AlcoTest 7110 MK III (Draeger) only one a year. Regardless the prosecution must lay a sufficient foundation as to the reliability of the Draeger. The Todd rule should apply and the government can present expert witnesses to prove calibration.

DWI Defense Lawyers

At Riebling, Proto & Sachs, LLP our DWI defense lawyers investigate every aspect of a DWI arrest. The best DWI defense will take advantage of every opportunity to limit the government’s case or have the case dismissed outright. The calibration of the breathalyzer is only one part of the defense to a chemical test of a motorist’s breath test but an important part since the local police have no control over the calibration and usually have no idea how the machine is calibrated.

Free Consultation on all DWI arrests and cases

To have your case reviewed for Free call our office. We represent clients in Westchester, Orange, Rockland, Putnam, Bronx & Dutchess Counties. Our attorneys are former prosecutors and dedicated to reviewing your matter and providing you with the best criminal defense. The Breathlyzer calibration is an important part of a DWI criminal defense and our Westchester County DWI lawyers will review your case, identify the best defense and give you candid straightforward advice.

• THE TRAFFIC STOP

Types of traffic stops by police officers are common question at my office. Everyone seems to think that you can be pulled over “when you do something wrong” and that’s true but the Vehicle and Traffic Law goes beyond that and makes rules to protect driver’s. A general understanding of the law will help you be prepared as you drive the roads of New York State and help you protect your rights.

The police may NOT stop a vehicle on a public highway for a routine traffic check. ONLY when the officer has “reasonable suspicion” to believe that a violation or crime is committed may the vehicle be stopped. People v Ingle, 36 NY 2d 413. A police officer’s good faith but erroneous belief that a person committed a traffic infraction (failing to signal when exiting a private driveway) will not support a stop. Byer v Jackson, 241 AD 2d 943.

In New York Traffic Court either at the Traffic Violation Bureau (TVB) or in the local justice Courts, the Courts must evaluate police conduct and determine whether the action taken was justified in its inception and at every subsequent stage of the encounter. People v Nicodemus, 247 AD 2d 833. However, a police officer’s failure to issue a ticket for a traffic infraction that was the basis for the stop does not defeat probable cause. People v Ferraiolo, 309 AD 2d 981.

In a DWI arrest the office first needs a reason to pull you over. Most police officers will find a violation of the vehicle and traffic law such as speeding, weaving out of lane or as a last resort a police officer may use an equipment violation if they suspect a motorist is driving DWI. Importantly, weaving or swerving IN a lane is not a traffic infraction and does not constitute reasonable suspicion. People v Culcross, 184 Misc. 2d 67. A stop for unsafe lane change requires a driver to signal each time when changing lanes as well as turning. People v Rice, 44 AD 3d 247. Lastly, stopping a car and approaching it with guns drawn based upon an anonymous report was improper, where there was no reasonable suspicion. People v Heapps, 13 AD 3d 107.

Reasonable suspicion is the standard the police must use to pull over a motorist. This is always the first line of attack when defending a traffic ticket or a move serious charge such as DWI, DWAI, DUI or even traffic stops that result in other charges such as drug or gun charges. Reasonable Suspicion is that amount of knowledge sufficient to justify a stop.

If you have any questions about when can the police pull you over contact one of the attorneys at Riebling, Proto & Sachs, LLP. We offer a free consultation. Our attorneys regularly appear in the traffic Courts of New York State including the New York TVB and the local justice Courts. Our main office is in White Plains, New York but we also have offices in the Putnam and Orange Counties.

Our attorneys work to protect your license and insurance rates.

Good luck on the road.

Traffic Tickets and the Best Defense

A common mistake is to look at a traffic ticket in New York and think, all is lost, there can be no possible defense. Usually there are several defenses to a traffic ticket and as any good criminal defense attorney will tell you it all starts with the traffic ticket itself.

In New York State traffic tickets are written for any crime or violation under the New York State Vehicle and Traffic Law (VTL). Tickets can be written for moving violations such as speeding, non-moving violations, equipment violations even DWI and DWAI Drugs. The traffic ticket is the basis for a prosecution and it the starting point for the defense to the charge.

1. The Ticket (Simplified Traffic Information)

The Ticket is usually a half page document, yellow in color, that a police officer would hand you on the side of the road. A State Trooper may provide you with a full page ticket (white in color) but usually its the front and the back of the “yellow” ticket on one page. The front of the ticket outlines the charge while the back has instructions regarding how to respond. The ticket is also known as a Simplified Traffic Information.

The sufficiency of a simplified traffic information is governed by the criminal procedure law. Because the traffic ticket is the local court accusatory instrument that provides the least amount of information. the recipient is entitled as a matter of right, upon a timely request, to a supporting deposition.

2. The Supporting Deposition

The supporting deposition is a document that explains the charge in greater detail. The supporting deposition must be completed by the police officer and must allege all of the elements of the offense. The statute provides that the allegations may be made upon personal knowledge or upon information and belief providing reasonable cause to believe that the driver committed the offense charged.

3. Probable Cause

The ticket and supporting deposition together must provide probable cause to believe that the traffic offense in questions was committed. A supporting deposition that contains boxes checked off by the police officer is sufficient.

4. Time to request a Supporting Deposition from the Police

In some cases a driver will receive a supporting deposition from the police with the traffic ticket, usually issued by the State Police, but in most instances the police officer will only provide a traffic ticket without a supporting deposition.

The request a supporting deposition must be made within 30 days of the court appearance noted on the ticket. Where the charge is a misdemeanor such as DWI or reckless driving the driver may request a deposition beyond the 30 day period up to 90 days with permission of the court.

5. The Plea

Always plea NOT GUILTY to a traffic ticket. In most cases an experienced criminal defense lawyer can get the charge dismissed or reduced. A guilty plea is the same as if you went to trial and were found guilty by the judge or jury. Your best option is to contact one of our experienced criminal defense lawyers to aggressively attack the ticket and its contents even before appearing in Court.

A plea can be entered in court on the date at the bottom of the ticket or by a signed statement on the ticket by mail. When pleading not guilty by mail, the plea must be sent by registered or certified or first-class mail and within 48 hours of receiving the ticket . A driver may plea not guilty by mail and request a supporting deposition. FAILURE to act in a timely matter will cause a loss of the right to the supporting deposition.

6. Service of the Supporting Deposition

The deposition must be provided to the driver within 30 days of the court’s receipt of the request for it OR 5 days before trial whichever comes first.

7. Failure to provide a Supporting Deposition

When the court orders the filing of a supporting deposition and the police officer fails to comply in a timely manner the ticket is rendered insufficient on its face and may result in a dismissal.

The above is one of the basic and best defenses to traffic tickets. Although there are many defenses this requirment always remains at the core. It is important to have a traffic ticket attorney since the police officer may try to submit a late supporting deposition or other method to prevent the case from being dismissed. Our traffic ticket attorneys are prepared to protect your rights and provide you with the best possible criminal defense either in a traffic ticket case, DWI case or other criminal matter.

If you have questions regarding your criminal matter or traffic ticket case call one of our attorneys for a free consultation.

The best defense is a strong understanding of the criminal procedure law and how each court operates in New York State.

The DWI/DWAI Zero Tolerance Law - Underage Drinking and Driving

In New York State underage drinking and driving is a serious offense. It is important to contact a skilled DWI defense attorney to protect your or your child's rights in cases of underaged drinking and driving.

At Riebling, Proto & Sachs, LLP, our criminal DWI defense lawyers are prepared to appear in Court or at a DMV administrative hearing and fight for you. Our main goal is to protect you, your license and insurance rates. We are experienced Westchester Trial Attorneys.

The DWI Laws in New York State are as follows:

The DWI / DWAI Arrest

If you are under 21 years of age, driving and pulled over resulting in a DWI investigation, you will be taken to the local police department or State police barracks for the purpose of taking a chemical test to determine your BAC level.The chemical test is usually a breath test, blood test or urine test.

Once you BAC level has been determined you will be charged accordingly.

Administrative Hearing vs. Criminal Court for a DWI

The following is a breakdown of the Zero Tolerance Law in New York State:

• If your BAC is .02% or more, but not more than .05%, you will be charged with the traffic offense of "driving after having consumed alcohol." You will then be provided with a notice to appear for a hearing before an administrative law judge of the Department of Motor Vehicles.
• If your BAC is more than .05% but not more than .07%, the police will have the option of charging you with "driving while ability is impaired by alcohol" (DWAI).
• If your BAC is more than .07% but less than .08% you will be charged with the offense of "driving while ability is impaired by alcohol" (DWAI), and for those with a BAC of .08% or more, the charge will be "driving while intoxicated" (DWI).

If you are charged with either DWI or DWAI, you will be arrested and dealt with in criminal court.

We provide a more detailed explanation of the Criminal Court Process here.

The DMV Administrative Hearing

The Hearing will be held at a local DMV office. You have the right to be represented by an attorney, the police officer will testify and you will have the opportunity to present witnesses and evidence on your own behalf.

During the DMV Administrative Hearing, the police officer must prove the following:

• You were the person who operated the motor vehicle;
• A valid request was made to submit to a chemical test (Breathalyzer);
• You were younger than 21 at the time;
• The chemical test was properly administered;
• The test showed you had consumed alcohol (.02% or more); and
• The police officer made a lawful stop of the vehicle.

If, after both sides have been heard, the police officer has carried his burden of proving the case, the administrative law judge will make a finding that you drove after having consumed alcohol.

The penalties include a 6-month license suspension, a $125 civil penalty, and a $100 suspension termination fee. Each additional offense will result in your license being revoked for at least one year or until age 21, whichever is longer, plus a $125 civil penalty, and a $100 license re-application fee.

License Revocation as a result of driving after having consumed alcohol

You will need to turn in your license to DMV, and it will be illegal for you to drive. At the end of the revocation period, you may apply for a permit and start the licensing procedure. This does not mean that you will have a new driving record. Any convictions you had with the license which was revoked will still be part of your driving record.

Alcohol and Driving equals: License Suspension

You will need to turn in your license to DMV, and it will be illegal for you to drive. Your license will be returned to you at the end of the suspension period.

If your license is suspended under the zero tolerance law, and you do not have any prior alcohol-related convictions on your license, you may be eligible for a conditional license. However, in order to receive one, you must enroll in and complete the Drinking Driver Program. A conditional license will allow you to drive back and forth to work and school, but it is not the same as a full license.

DWI and DWAI Legal Help

Driving While Ability Impaired or Driving While Intoxicated can have serious implications on your ability to drive in New York State or elsewhere.

It is important to contact a skilled DWI lawyer in New York State as soon as possible to protect your rights. Our attorneys at Riebling, Proto & Sachs, LLP are former Assistant District Attorneys and use that experience to aggressively defend your case. We are Westchester County DWI lawyers also working in all Counties in lower New York.

Contact our Lawyers for a Free Consultation. Our office is always available regarding your DWAI/DWI case and can not only put your mind at ease but provide you with valuable information regarding your drinking and driving defense and your best options to proceed.